How to Cope with the Threat of Tribunal | Mayo Wynne Baxter | Classic Consulting

Whether a claim is brought is entirely up to an employee. If there are issues to be judged then an employer will probably have to settle or attend a hearing. This is an unnerving prospect.

This seminar will show how the defence to a claim starts before the claim is ever made. It will explore how thorough preparation is key to success at a hearing, that witnesses must be credible and consistent and will provide in depth analysis as to how cases are decided.

1.
This version of the slides picks out the key points made in the session on 26 September. The accompanying notes do not cover everything that was discussed, we covered too much ground, but will act as a prompt with regard to the key issues. 1

2.
We started by looking at the raw sta?s?cs produced by the Employment Tribunal Service. The actual number of Tribunal claims fell from the previous year. However, there are s?ll a large number of claims made each year. While they may not all proceed to a hearing they do have to be processed and the Employment Tribunal Service does struggle at ?mes to cope with the claims as a result of being under resourced. The cost of the delays is paid by the par?cipants in the proceedings. 2

3.
The average awards made by the Tribunal give a beBer indica?on of what is at stake with claims than the headlines made by large awards. While awards in excess of six ﬁgures are possible it must be remembered that they are largely based on losses. Most people will not have incurred huge losses when making a claim. Even when calcula?ng averages we have to be careful. The ﬁgures on the leF represent the median average. These are a beBer indicator then the mean average listed on the right, which can be distorted by one or two very large awards. 3

4.
More costs awards are being made and there is poli?cal pressure for even more to be made. The cap on the maximum amount that can be awarded has recently been doubled. However, costs are not awarded as mater of rou?ne and will only be if one of the par?es has acted in such a way that the Tribunal considers that the other party should be compensated in some way. When compared to the amount of claims there are the number of costs awards is very small. Both par?es have to bear the burden of their own legal costs which in turn inﬂuences thoughts on seBlement. The alterna?ve would be to have a system, as in the civil courts, where the winner can claim costs from the loser. However, not all is perfect in that world either. 4

6.
The ﬁrst line of defence is having sound policies and procedures. While it may seem expensive and ?me consuming to draF them and follow them they can be a saviour in the long term. Solid procedures act as a guide to best prac?ce. An employer can demonstrate to an employee that they are doing the right thing and this can help limit the risk of the employee automa?cally thinking that they have a claim. It is essen?al to follow the correct procedure. While only disciplinary and grievance procedures are compulsory it helps to have the other two as well. Capability issues have to be handled diﬀerently from disciplinary issues. If someone is genuinely sick then they should not be disciplined, a properly draFed sickness management procedure is a much beBer op?on. Where an employee is not genuinely sick then the employer can address any related ac?ons under the disciplinary procedure as this is a maBer of misconduct. 6

7.
All procedures should be backed up by good notes. If there is a mee?ng with an employee under any procedures it should always be noted. The notes are essen?al evidence to be referred to at a Tribunal hearing. They can help prevent the prospect of the Tribunal balancing one person’s word against another. However, the notes must be clear. If a Tribunal cannot ascertain the content of the mee?ng from the notes then problems ensue. It is essen?al that they properly list the points at issue in the mee?ng. They must clearly show who said what. Finally, the conclusion of any mee?ng, and what is expected to happen thereaFer, should be properly noted. 7

8.
We discussed at length the problems that people have with remembering events. As humans, we only really recall the last ?me we recalled an event. This means that our recall can change over ?me. Contemporaneous notes help secure the recall. The longer you leave making the notes the worse the recall will be. If a party has only made notes a week or so aFer an event they will struggle to compete in terms of credibility with someone who made notes straight away. The events that are being inves?gated at a disciplinary or grievance mee?ng are not usually recorded in wri?ng at the ?me. GePng witnesses to apply pen to paper as soon as possible is impera?ve. 8

9.
This slide and the discussions around it con?nued the mantra of having proper notes and documents. WriBen evidence is essen?al. Why do lawyers keep going on about having contracts? Because a well draFed contract means both sides have greater certainty about what the agreed terms are. 9

10.
The ET1 is the Claim Form and the ET3 is the Response Form. For the employer the ET3 is the ﬁrst ?me that they get to put their side of the story forward. A Tribunal will refer to it at the hearing. It, therefore, needs to be right. There is only a limited amount of ?me to complete an ET3 but ?me and energy must be spent at this stage to make sure that the story is straight. Any subsequent variance will undermine the case to be made. Make sure your witnesses fully understand that what they have to say at this stage must be consistent with the evidence they give under oath at the hearing. 10

12.
The burden of proof in the civil courts and the Tribunal is at a lower level than in the criminal courts. This is both good and bad news. An employer will be expected to make its decisions on maBers such as dismissal on the balance of probabili?es. As useful as this may be a Tribunal can also ﬁnd against an employer using the same threshold. 12

13.
A hearing can involve a lot of wai?ng around. Tribunals will not see the witness statements and documents un?l the ﬁrst morning of a hearing. They need to read them before baBle commences. This means that the par?es have to go back to their respec?ve wai?ng rooms and wait for the reading to be completed. The Tribunal used to ask witnesses to read out their statements but this is now covered oﬀ in the reading session. As a result, the witnesses have no ?me to get comfortable and will immediately be faced with cross-­‐examina?on under oath. Witnesses must, therefore, be properly prepared and fully familiar with their statement and all of the documents set before the Tribunal. 13

14.
By way of illustra?on we looked at a couple of cases based on football, in keeping with our venue (the Amex Community Stadium – home of Brighton & Hove Albion Football Club). One of the cases that we looked at was that of John Terry, the Chelsea and England footballer. At the ?me only his criminal case had reached a conclusion. We also looked at the FA Commission’s outcome on the Luis Suarez case. Very usefully, this case set out how the Commission dealt the evidence and the approach it was taking to arriving at a conclusion, something not usually dealt with in such detail in Tribunal judgments. References were made throughout the judgment that back up the need for consistent case presenta?on and the problems that can result when diﬀerent versions of events are presented by the same side. It also illustrated how much can be read into the way a witness conducts themselves at a hearing. When it came to the John Terry case we looked at how the higher burden of proof can inﬂuence a decision. As we now have the ﬁndings of the FA Commission on the John Terry case this contrast is more evident. In the criminal court there was reasonable doubt on the part of the Magistrate and John Terry was acquiBed. The FA Commission was judging John Terry on the balance of probabili?es and found him guilty. Interes?ngly John Terry chose not to give evidence in person to the Commission. One suspects because he was advised that this may show up some inconsistencies in his story when it was examined at the lower threshold. Nonetheless, the Commission shone the light on them without his assistance and he was found guilty of the charges he faced. 14

15.
These are only the highlights of the changes that could be coming our way with regard to Employment Law. Further proposals for change have arisen out of the Conserva?ve Party Conference. Please let me know I you would like further informa?on on the proposals for change. 15